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New Protections for Massachusetts Domestic Workers, Part 2

Note: This post is Part 2 in our series of blog posts detailing protections under the Massachusetts Domestic Workers Law. Click here to return to Part 1.

What are the Employer’s Notice and Record-Keeping Obligations?

The new law and proposed regulations also impose a number of record-keeping obligations on household employers.

Domestic workers are permitted to request a written evaluation of their work within three months of their employment and every year thereafter.  If an employer completes a written evaluation, the worker has the right to review it and dispute its contents under Massachusetts’ personnel record law, M.G.L. ch. 149 s. 52C.  In the event of a disagreement, the personnel records law requires an employer to either amend the evaluation or include the worker’s written response with the evaluation in his or her records and in any transmission to a third party of the evaluation.  M.G.L. ch. 149 s. 52C.

The law also requires an employer to keep a true and accurate record of wages and hours for workers for three years.  It further requires employers to retain for three years the following information for domestic workers employed for 16 hours or more per week:

  • Rate of pay, including overtime, raises, and bonuses;
  • Working hours, including meal periods; rest  time, sick days, vacation days, holidays, and other benefits (if paid or reimbursed), including health insurance and transportation costs;
  • Costs for meals and lodging (if reimbursed);
  • Job description;
  • Process for raising/addressing grievances;
  • Eligibility for worker’s compensation;
  • Description of what employer considers cause for termination;
  • Required notice of employment termination by the employer
  • Any additional benefits afforded by the employer.

Some of these latter requirements, including the descriptions of job responsibilities, grievance process, for cause termination, and notice of termination, essentially require household employers to engage in a process of creating an employment agreement for their employee.  The Massachusetts’ Attorney General’s Office has created such a model form agreement for household employers to complete.  The form agreement does not specifically state the employment is at-will (which under Massachusetts law means that an employer can terminate an employee who is not under contract for any reason that is not discriminatory or unlawful).  The agreement therefore may create a cause of action in contract for both the employer and employee if either party breaches the terms of the agreement.

The proposed regulations also require employers who employ a domestic worker for more than 16 hours per week a time sheet to their employee at least once every two weeks.  The Massachusetts Attorney General’s Office has included a form time sheet on their website.  The worker is supposed to acknowledge agreement with the time sheets by signing it and returning it to the employer, which must be kept in their records for three years.  If the worker disputes the hours, the worker must be given the opportunity to note the hours on the sheet.

An employer must provide all of these records to the Attorney General upon demand.

An employer must also provide notice of all applicable Massachusetts and federal laws that apply to domestic workers prior to the worker’s employment.  The notice of rights is included on the Attorney General website.

How will these Protections and Obligations Be Enforced?

The Attorney General’s Office will enforce the law using the same enforcement procedures under the Massachusetts Wage Act.  The Attorney General is authorized to seek injunctive or declaratory relief in superior court or by issuing a civil citation or warning to an employer.  The Attorney General may also require the employer to rectify its practices, make restitution to the worker, or pay a civil fine.

Workers who have been aggrieved under this law can also file complaints with the Attorney General and receive a right to sue letter to enforce their rights in court.  Employees who prevail in court shall be awarded treble damages, lost wages and other benefits, the costs of litigation, and attorneys’ fees.

Given the steep penalties involved, household employers should take care to review their new obligations and make efforts to begin compliance.

Click here to return to Part 1 of this series.

Click here to read about Zalkind Duncan & Bernstein’s employment law practice.

 

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